Our Bodies Ourselves (OBOS) is a nonprofit, public interest organization based in Boston, Mass., that develops and promotes evidence-based information on girls’ and women’s reproductive health and sexuality. OBOS provides an excellent online summary of the history of laws relating to abortion in the U.S.
Modern abortion law really started on January 22, 1973, when Roe v. Wade (410 U.S. 113) was decided by the U.S. Supreme Court.
A pregnant single woman (Roe) brought a class action challenging the constitutionality of the Texas criminal abortion laws, which proscribed abortions except on medical advice for the purpose of saving the mother’s life. In Roe, the Court found:
State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother’s behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman’s qualified right to terminate her pregnancy.”
Thereafter, Medicaid — a program funded jointly by the federal government and individual states — covered abortion care as part of comprehensive health care services provided to low-income women. However, in 1976, Congress passed the Hyde Amendment, which prohibited the use of federal funds for abortion care, except in cases of rape, incest or endangerment to the life of the mother. The law effectively left the decision of funding abortion to the states, and most states choose to enact bans in their own Medicaid programs. The Hyde Amendment has been reenacted by Congress every year since 1976.
Because, as data show, the unintended pregnancy rate among poor women is five times the rates for higher-income women, the law’s impact has been disproportionate. (One reported reason for the discrepancy is poor women’s limited access to contraception, which is expensive.)
In 1980, Harris v. McRae (448 U.S. 297) upheld the Hyde Amendment in a narrowly divided ruling delivered by Justice Potter Stewart, declaring that women’s constitutional rights were not violated by the ban on federal funding for abortions.
In 1992, the Court, in Planned Parenthood v. Casey (505 U.S. 833), in a 5-4 opinion written by Justice Sandra Day O’Connor, upheld a highly restrictive Pennsylvania law that included mandatory waiting periods, parental consent, and biased information. Further, the Court allowed laws designed to limit access to abortion at any stage of pregnancy, so long as the law does not place an “undue burden” on a woman’s access to abortion.
In the 2007 case Gonzales v. Carhart (550 U.S. 124), the Supreme Court upheld the so-called Partial-Birth Abortion (PBA) Ban Act. This law was passed by Congress and signed by President George W. Bush in 2003. The question before the Court was whether PBA was an unconstitutional violation of personal liberty protected by the Fifth Amendment because the Act lacks an exception for partial-birth abortions necessary to protect the health of the mother.
In a 5-4 decision delivered by Justice Anthony Kennedy, the Court found that because the Act applies only to a specific method of abortion, the ban was not unconstitutionally vague, overbroad, or an undue burden on the decision to obtain an abortion. In her dissent to Gonzales v. Carhart, Supreme Court Justice Ruth Bader Ginsburg decried the ruling, saying:
Today’s decision is alarming … It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). It blurs the line, firmly drawn in Casey, between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health.”
The Guttmacher Institute, a leading research and policy organization committed to advancing sexual and reproductive health and rights in the U.S., documents that since Roe v. Wade, “states have constructed a lattice work of abortion law, codifying, regulating and limiting whether, when and under what circumstances a woman may obtain an abortion.” The pace has been picking up with the overwhelming ascendancy of conservatives in state governments. In 2015 alone, conservative lawmakers considered nearly 400 bills to limit a woman’s access to legal abortion and passed 57 new restrictions. More recently, the Institute reports:
States continued their assault on abortion in 2017, with 19 states adopting 63 new restrictions on abortion rights and access. That total is the largest number of abortion restrictions enacted in a year since 2013. In addition, Iowa, Kentucky and South Carolina all moved to restrict public funding for family planning programs and providers in 2017, bringing to 15 the number of states that have taken aim at the family planning safety net since the 2015 release of a series of deceptively edited videos seeking to discredit Planned Parenthood.”
Data up to 2016
A 2018 report charges:
Coercive intent and practices are at the core of social conservatives’ reproductive health agenda, including virtually every reproductive health–related initiative from the Trump administration and social conservatives in Congress over the past year.”
Perhaps even more worrisome:
Against a national backdrop of policymaking that often appears to willfully ignore clear and compelling data, it is important to note that 17 states have laws on abortion that match at least five of 10 major categories of restrictions that conflict with scientific evidence. Kansas, South Dakota and Texas top the list with restrictions in eight of these categories; Louisiana and Oklahoma each have seven. An additional 12 states have 2–4 of these types of restrictions, and so are considered in moderate conflict with the science (see Flouting the Facts: State Abortion Restrictions Flying in the Face of Science.) Only 21 states have laws that pose no or limited conflicts with scientific evidence.”
You can find an overview of state abortion laws as of February 2018 here.
The laws have come up with any number of ways to reduce availability of abortion services, in particular, by targeted regulation of abortion providers (TRAP) regulations. As OBOS explains, TRAP regulations single out abortion providers and facilities by mandating burdensome and medically unnecessary requirements that are more stringent than requirements for other medical procedures of similar risk. Abortion has been found to be one of the safest medical procedures in the country, far safer than pregnancy and childbirth, and complications are rare. The Centers for Disease Control reports abortions are “more than 99 percent safe.”
As OBOS contends, “The true intent of TRAP laws is not to improve the safety of abortion but to place onerous restrictions on clinics and abortion providers so that they must stop providing services.” According to the Guttmacher Institute, as of 2017, 24 states have TRAP laws or policies in place.
Restrictions on abortion coverage are not limited to public funding. The Affordable Care Act (ACA) actually extended the Hyde Amendment restrictions on abortion coverage to states’ newly created health insurance exchanges. The ACA also allows states to prohibit abortion coverage entirely in health insurance plans offered through an exchange. Since the law was implemented, twenty-five states have barred health plans participating in the exchange from covering abortion. The ACA permits providers and facilities to refuse to provide, pay, or refer for abortion services under federal refusal provisions.
What does this mean for women’s rights? It’s not a happy picture if you don’t believe women should be forced to undergo ultrasounds (sometimes anal) and/or give up the right to safe interruptions of unwanted pregnancies. Pregnancies that are the result of rape (yes! you can get pregnant even if you are “legitimately” raped!) or other unpleasant circumstances that could cause a child to be unwanted or neglected or to ruin the life of the mother (as opposed to the person impregnating her), must proceed.
Unfortunately, according to the National Institutes of Health, statistics tallied through 2008 reveal:
Every year, worldwide, about 42 million women with unintended pregnancies choose abortion, and nearly half of these procedures, 20 million, are unsafe. Some 68,000 women die of unsafe abortion annually, making it one of the leading causes of maternal mortality (13%). Of the women who survive unsafe abortion, 5 million will suffer long-term health complications.”
Needless to say, restrictive laws associated with high rates of unsafe abortions. A study by WHO and the Guttmacher Institute published in The Lancet of abortions conducted between 2010 and 2014 showed:
In countries where abortion is completely banned or permitted only to save the woman’s life or preserve her physical health, only 1 in 4 abortions were safe; whereas, in countries where abortion is legal on broader grounds, nearly 9 in 10 abortions were done safely. Restricting access to abortions does not reduce the number of abortions.” [emphasis added]
It concludes:
When women and girls cannot access effective contraception and safe abortion services, there are serious consequences for their own health and that of their families. This should not happen. But despite recent advances in technology and evidence, too many unsafe abortions still occur, and too many women continue to suffer and die.”
Some may wonder why there some women who seek abortions after twenty weeks, a common prohibition point for the new legislation. According to a pediatric cardiologist specializing in high-risk pregnancies:
The answer is that comprehensive fetal testing, such as anatomical sonograms and ultrasounds of the heart, are typically performed just before 20 weeks of gestation. Such scans are critical for uncovering major birth defects, such as anencephaly (severe brain malformations), major heart defects, missing organs and limbs, and other severe birth defects. Fetal development is a complex process that often goes awry. Roughly 2 percent of all pregnancies are complicated by a major birth defect, and of those about 0.5 percent have a chromosomal defect, such as an extra or missing segment of normal DNA. Birth defects are a leading cause of infant mortality, and in many cases of severe birth defects, no medical treatment can salvage a fetus’s life or result in any measure of normal future health. [my emphasis]”
Nevertheless, here are the sad statistics for women’s “choice”:
You can access a more detailed chart about reproductive rights at the excellent Guttmacher Institute site, here. You can access information relating to laws restricting a man’s right to get women pregnant and pay for the consequences, um, nowhere.
Legal Legacy 
Leave a comment